- What did the defendant know?
- What was the degree of risk? The greater the risk the more serious the harm can be inflicted, therefore the greater the precautions that the defendant will be required to take.
- How practical were these precautions?
- What is the social importance of the defendant activity?
The minimum standard of care to be achieved by the reasonable person is objective. For example there is no direct reference to the actual strengths or weaknesses of the particular defendant in the instant case.
Standard of care is usually measured by an objective test. This is the standard that would have been adopted by the reasonable man confronted by the same circumstances. This test was first identified in Blyth v Proprietors of the Birmingham waterworks 1856. “Negligence is the omission to something which a reasonable man would do, or doing something which a prudent and a reasonable man would not do.” It was later defined in Hall v Brooklands Auto racing club 1933. “The man on the street or the man on the Clapham omnibus, or the man who takes the magazines at home and in the evening pushes the lawnmower in this shirt sleeves.”
In the case of Donoghue v Stevenson Mrs Donoghue consumed part of a drink of ginger beer given to her by her friend. When drinking the ginger beer she found part of decomposed snail. Later she claimed to be suffering from stomach pains. She claims that the pains were due to her consuming the drink which contained a decomposed snail. She claimed £500 as a result of this. However is was questioned that should she be able to sue the defendant, who in this case is the manufacture of the ginger beer as she did not purchase the drink directly, the drink was a present to her from her friend. Mrs. Donoghue sued Mr. Stevenson (the manufacturer) for negligence, as she could not sue for breach of contract as there was no contract between them. Through the Donghue v Stevenson case the neighbour test was established. In 1932 Lord Atkin gave a speech- There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question”.(www.wikipedia.org/wiki/donoghue) Lord Atkin applied this neighbour test to the case that is where an established duty of care does not already exist, a person will own a duty of are not to injure those who it can be reasonably foreseen would be affected by their acts or omissions. The act of this case was to provide individuals with a remedy against suppliers of consumer products. In 1978 Lord Atkins’ neighbour test was revised and applied Ann’s v Merton London’s Borough Council. From this developed the two stage test. Also known as ‘Ann’s test.’ This two stage test requires;
- a sufficient relationship of proximity based upon forseeability
- And considerations of reasons why there should not be a duty of care.
Then later on in 1990 Lord Atkins speech was referred to and applied in Caparo v Dickman. From this developed the three stage ‘Caparo’ test. This required;
- Forseeability of damage
- A relationship by the law as one of proximity or neighborhood
- The situation should be one that the court considers it would be fair just and reasonable
It has been said that the three stage test adopted from Caparo v Dickman differs from the two stage test as the case is not from a general proposition of Lord Atkins principle, but from a consideration of the particular relationships which have previously given rise to a duty of care.
Causation and remoteness of damage.
Causation and remoteness of damage are the essential links between the breach of the obligation imposed by law and the damage. Causation is a factual and logical question and remoteness is a legal question. This is based on policy considerations about the appropriate extent of the defendant’s liability. Lord Hoffmann stated that ‘the rules laying down causal requirements are creatures of the law’ and that ‘it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability.’
Where proof of damage is essential causation is relevant to all torts. The problem is usually discusses in the context of negligence. There is a basic rule that is applied this can be stated positively or negatively.
- If the damage would still have occurred, even if the defendant had not broken the duty of care, then the breach did not cause the damage.
- If the damage would not have occurred but for the defendant’s breach of duty, then the breach of duty is the cause of damage.
This is known as the ‘but for’ test. The main purpose of the but for test is to exclude things that have no bearing on the damage. The claimant must prove that the breach of duty was the cause for the damage, and not for the defendant to prove that the breach of duty was not the cause of damage.
Statutory liability act: Occupier’s liability act 1957.
This act defines the duty of care that the occupier has to people who enter his premises lawfully. The occupier’s liability act 1957 does not replace the principles of common law negligence that apply to occupiers; it states what the duty of care is. This means that the claimant does not have to overcome the first hurdle in a negligence action. The duty is to ‘take such care as is reasonable in the circumstances to see that the visitor is reasonably safe for the purposes for which he is permitted to be there.’
Occupier’s liability act 1984:
This act defines the duty of care that the occupier of premises owes to people who are not covered by the provisions of the occupier’s liability act 1957. This is protecting persons excising a private right of way, not public. This is a category excluded from the 1957 act. A duty of care only arises when;
- The occupier is aware of the danger on his/hers property.
- The occupier believes on reasonable grounds that people are going to enter his premises without his/hers permission.
- The danger is one which it is reasonable to expect the occupier to protect against.
This 1984 act offers less protection than the OLA 1957 act.
An exclusion clause is a term that seeks to limit the liability of one or of another party in a contract. It is acts that are used to defend parties for consequences of Breach of Contract and negligence. This is encase there is some problem with performance of the contract. The phrase ‘limitation clause’ is often used for a clause that limits, rather than excludes, liability. Certain conditions must be met for the exclusion clause to be enforceable;
- It must be incorporated in the contract,
- Its meaning must be clear
- It must not be prevented by statute
- The contract must remain intact that the clause still has some legal force.
The defence of exclusion of liability is covered under s 2(1) of the occupier’s liability act 1957. It states that ‘ an occupier of premises owes the same common duty of care to all his visitors except in so far as he is free to extend, restrict, modify or exclude his duty to any visitor or visitors.’ This arises when the defendant has a sign up clearly stating that the person may enter the property, however at their own risk and if they were to substain injuries then they would not be able to recover damage they have suffered whilst on the land as there was a sign up telling them that it is at their own risk.
Worksheets provided in lessons